The Equitable Securities Company v. Talbert
| Citation | 49 La.Ann. 1393,22 So. 762 |
| Decision Date | 01 June 1897 |
| Docket Number | 12,500 |
| Court | Supreme Court of Louisiana |
| Parties | THE EQUITABLE SECURITIES COMPANY v. SILAS TALBERT; MRS. BELLA TALBERT, INTERVENOR; AND MRS. BELLA TALBERT v. W. R. SUTHERLIN, CLERK, ET ALS. (CONSOLIDATED) |
Argued May 12, 1897
APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.
Farrar Jonas & Kruttschnitt, for Equitable Securities Company Plaintiff, Appellant.
J. F Pierson, Elam & Egan and Lee & Liverman, for Mrs. Talbert Intervenor, Appellee.
NICHOLLS, C.J. BLANCHARD J., takes no part in this decision, having recused himself.
The plaintiff obtained from the District Court for the parish of De Soto an order of seizure and sale directed against certain real estate belonging to Silas F. Talbert in enforcement of notes executed by Talbert bearing mortgage on said property.
Mrs. Bella Horn, the wife of Talbert, intervened in said proceedings. In her petition of intervention she alleged that her husband was indebted to her in the sum of thirty-one hundred and sixty-five dollars and more for paraphernal funds of hers received by him and converted to his own use, the said amounts having become her property from certain designated sources; that the evidence of her husband's said indebtedness to her had been duly and legally placed of record in the office of the recorder of mortgages for De Soto parish on the 23d of November, and by said recording payment of the indebtedness due to her by her husband had become secured in her favor by a general mortgage on all her husband's property in the parish of De Soto since the date of the same; that said mortgage when it arose was the first mortgage on his property; that it still existed in full force and effect on his property as a first mortgage.
That about the month of April, 1889, her husband proposed to mortgage certain real estate (which she specially described) in the parish of De Soto and on which her said mortgage rested, to the Equitable Mortgage Company, represented at that time in the city of New York by Norman F. Thompson and in Louisiana by William P. Ford, for a loan. That it became necessary for the purposes of her husband and said mortgage company that her legal mortgage should be canceled and erased from the mortgage records in order to give to the said mortgage company a first mortgage on said property -- that her husband endeavored to induce her to consent to the erasure and cancellation of her said legal mortgage on said property, but that she refused -- that her husband then by persuasion and marital coercion induced her to go to Shreveport to see William P. Ford, the agent of the company; that she was then and there, on the 27th day of May, 1889, under marital coercion of her husband and fraudulent representations by the said William P. Ford, and in ignorance of the extent of her legal rights and after repeated protests and refusals on her part induced to sign an act before said William P. Ford, who was at the time also clerk of the District Court and ex-officio notary public for Caddo parish, by which it was declared that the said sum due her by her said husband had been paid and by which the clerk of the court for De Soto parish purported to be authorized to cancel said legal mortgage. That said sum due to her by her husband (as was well known to him and to said Ford, the agent of said company) had not been paid -- that she repeatedly told Ford at the time that no part of said sums had ever been paid to her by her husband and that no part of said sums had since been paid.
That said sum due her by her husband (as was well known both by her husband and to Ford, the agent of the company) had not been paid. That on the 28th of May, 1889, the deputy clerk of the District Court of De Soto parish, acting upon the pretended authority of said so-called acknowledgment and power to cancel, by her, pretended to cancel and erase her legal mortgage for said sums against her husband's property -- that upon the 27th of May, 1889, her husband executed a conventional mortgage on said lands in favor of Norman F. Thompson, the New York agent of said mortgage company, to secure notes or bonds payable to bearer at the office of said company for the sums set forth in the mortgage attached to plaintiff's petition, and that said mortgage was duly recorded in the office of the Recorder of Mortgages for De Soto parish on the 28th of May, 1889.
That lately the Equitable Security Company of New York, the successor of the Equitable Mortgage Company, claiming to be the holder of several of said notes, and with full knowledge of all the facts above alleged, had obtained in the De Soto court an order of seizure and sale of said lands under said mortgage, under executory process, to pay and satisfy said notes, together with attorney's fees, and that said lands were then advertised to be sold on the first of February, 1896. That unless restrained by an order of court the sheriff by whom said sale would be made would proceed to pay the proceeds of said land when sold to said Equitable Securities Company, in disregard of her rights and of her legal mortgage on said property for said sums. That the act by which she acknowledged payment of the said sum due her by her husband, and for which she had a legal mortgage on said lands, and by which the clerk of court is said to be authorized to cancel her legal mortgage on said lands, is utterly null and void and without legal effect, for the reason that the same was untrue in point of fact and was extorted from her by the marital influence and coercion of her husband and in ignorance of the extent of her legal rights and upon the fraudulent representations of said Ford, and for the further reason that she was not examined by the officers before whom the act was signed separate and apart from her husband, and her legal rights were not explained to her by said officer, as required by law, or by any one else, and said act did not recite that she was so examined separate and apart from her said husband, or that her legal rights were explained to her by said officer, or by any one else. She therefore averred that she was entitled by law to have recognition and enforcement of her said legal mortgage upon said lands for said sums as the first mortgage upon the same and in preference to the mortgage of the Equitable Securities Company. That said lands were the only lands owned by her husband at the time of the execution of said pretended acknowledgment of the payment by her or since, and her said husband did not own at the time of said acknowledgment, nor had he since owned, any other land or other property subject to mortgage than that referred to. She prayed to be authorized to stand in judgment and intervene in the pending suit by third opposition; that her husband and the plaintiff in executory proceedings be cited; that after due proceedings there be judgment nullifying and setting aside her said so-called acknowledgment of payment and authority to cancel her legal mortgage upon said lands and annulling and setting aside the said so-called cancellation of her said legal mortgage, based upon said so-called acknowledgment, and that she have judgment reinstating her legal mortgage upon said lands for the sum of thirty-one hundred and sixty-five dollars as having effect from and since November 27, 1883, and ordering the payment of her said legal mortgage for said sum in preference to the mortgage of the plaintiff for said sum of thirty-one hundred and sixty-five dollars, with recognition of her legal mortgage therefor upon all the lands of her said husband, and particularly upon the property referred to as having effect from and since November 27, 1883. She further prayed that the sheriff of De Soto parish be notified of the third opposition and ordered to hold the proceeds of sale of said property when sold until further orders of the court in said suit, and that upon a final hearing she have judgment decreeing her to be paid in full the amount of her claim, principal, interest and costs, in preference to the plaintiff.
Mrs Talbert simultaneously instituted direct proceedings in the District Court for De Soto parish against her husband and the clerk of the District Court for that parish for the annulment and setting aside of the said act of acknowledgment of payment and authorization to cancel her mortgage -- for the recognition of her claims against her husband and the mortgage securing the same, and the reinstatement of the evidence of the same upon the records of the Recorder's office in De Soto parish. By consent of parties this proceeding was consolidated with and tried with the main suit. The plaintiff in executory proceedings and the clerk of the District Court of De Soto answered by pleading first, the general issue. The Equitable Securities Company then averred that it acquired the mortgage notes attached to their petition for a valuable consideration in due course of business and before maturity; that is to say, said paper was acquired by it on or about the 26th of November, 1894, since which time it had been the legal holder and owner thereof. That when it acquired said paper there was exhibited along with said notes a mortgage certificate issued from the clerk's office of De Soto parish wherein said land is situated, which showed that the notes acquired by it were secured by special mortgage on the real estate of the maker, and that said mortgage was the only existing mortgage against said property, and that upon the faith of said mortgage certificates it acquired said notes before maturity for a valuable consideration and in due course of business. It denied the existence of any legal mortgage in favor of the wife, or that the same had any existence in...
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